Jerry M. Hunter speaks on KMOX’s Charlie Brennan show about SB 43

Bryan Cave attorney, labor expert, and Second Vice Chairman of the Board of Directors of Associated Industries of Missouri, Jerry M. Hunter, appeared today on the Charlie Brennan show on KMOX to discuss SB 43 and the recent NAACP travel advisory based, at least in part, on the passage of that bill.

You may listen to the podcast on the KMOX website by following this link.

Mr. Hunter emphasized the standard for proving discrimination in employment and housing cases contained in SB 43 is the “motivating factor”- the same standard observed in federal courts in Missouri and the same standard used in state courts from 1984 to 2007. That year, the Missouri Supreme Court changed the standard, without legislative authority, to a “contributing factor” standard. This essentially shifts the burden of proof to the employer. He further explained some cases under federal law observe an even higher burden of proof: the “but for” standard: “But for” discrimination, the action at issue would not have been taken.

He pointed out the Missouri Human Rights Act deals only with employment and housing and has nothing to do with travel.  He also stated the Equal Employment Opportunity Commission (EEOC) had notified Missouri that the new law is acceptable under federal standards.

When asked about the standard used in other states, Hunter mentioned two states in particular: California, which observes a “substantial motivating factor” standard; and Maryland, the headquarters for the NAACP, which observes the “motivating factor” standard.

Mr. Hunter stated he had been interviewed by reporters for St. Louis Public Radio and CBS News (see my other story for our experience with CBS News). Neither presented the employer side of the argument, contained in his comments, to their listeners and viewers.

Associated Industries of Missouri applauds Charlie Brennan and KMOX for allowing Jerry Hunter to tell the “rest of the story.”

 

 

 

 

“Fake news” or unfair reporting?

By Ray McCarty, President and CEO, Associated Industries of Missouri

We received a call Tuesday, August 1, from a CBS Evening News producer wanting to do a story on Senate Bill 43, the employment law reform bill we helped pass in the last legislative session. Specifically, the producer said the story was on the NAACP’s travel advisory.

We agreed to be interviewed by them and they brought a very professional crew into our offices. Ms. Jericka Duncan, an Emmy-nominated CBS News correspondent from New York interviewed me about the bill. She could not have been more professional in her questions and we answered all her questions during the interview.

I emphasized throughout the interview that SB 43 had nothing to do with travel through Missouri and we were curious as to why the NAACP had issued the travel ban. The bill affects only the relationship between employers and their employees and institutes the same standards used in Missouri prior to a 2007 Missouri Supreme Court decision. The bill also uses the same standard used in federal discrimination cases in Missouri and in state courts in many other states. We also explained the caps on damages contained in the bill were very similar to caps on damages in discrimination cases brought under federal law. And the fact the sponsor had filed this bill years before any discrimination charges were ever levied against his business.

Throughout the interview, we gave a reasonable assessment of the bill and its true impact: to reduce frivolous discrimination lawsuits against employers by requiring the plaintiff prove discrimination motivated whatever action was at issue. The bill was necessary because of the Missouri Supreme Court’s previous interpretations that a plaintiff show discrimination was only a “contributing factor” in the employer’s action, shifting the burden of proof to the employer to prove themselves innocent. We explained this bill restores the “innocent until proven guilty” protection for innocent employers and continues to allow those that are truly discriminating against employees to be punished.

We watched as the interview was properly uploaded to New York and was acknowledged as received. The producer explained the story may run later that same day on the CBS Evening News, or perhaps the following morning. Altogether, we spent a couple of hours with the correspondent and crew.

I watched the story on the CBS Evening News that evening, which you may also watch here.  I was surprised that despite our lengthy interview explaining why travelers through Missouri were not affected by the bill, only the NAACP’s views were carried in the two taped interviews they ran in the program: Nimrod Chapel, Jr., president of the Missouri NAACP (and a plaintiff’s attorney that sues businesses); and Pat Rowe Kerr, who recently won a discrimination lawsuit against the state of Missouri. Only one sentence at the end of the article carried our point of view, a brief mention that Governor Greitens said the bill would implement the same standard used by the EEOC in evaluating federal discrimination claims.

Later Tuesday, I received a message from the producer that the story had been bumped for the following morning so they would not be using the footage they shot at our location.

Of course, we have been interviewed by many in the news media before and I am very aware that only a minute or less of the footage is usually used out of an hour long interview. I have resisted writing about this for fear it may look self-serving, so let me be very clear: I don’t care whether they used the footage or not, but it would have been a fair, balanced story if they had at least used the points I made in our lengthy interview. But that did not happen.

No wonder people cannot believe the media version of events. Good journalism should provide balance in a story. We provided the facts, and they were ignored. This is another example of how viewers’ attitudes about subjects are often affected by the news media – and why it is important for all of us as viewers to ask ourselves if what we are viewing is the whole story.

For the record, SB 43 does nothing to impact travel in the State of Missouri. If you would like to read the new law, you may click here for the full text and read it for yourself. The bold language is new language that is added to the law in the bill and language in brackets is deleted by the bill. The law revision is effective August 28, 2017.